OSHA Enforcement Actions in the Food & Agricultural Industry Sector:

Effective Steps You Can Take Right Now To Improve Safety and Reduce Your Risk

Ann Jurkowski Bureau Veritas

Robert Loveall Cargill, Incorporated

Sherri Kuhlmann Agrium

Greg Dale, Moderator Faegre Baker Daniels

OSHA Enforcement Actions in the Food & Agricultural Industry Sector: Effective Steps You Can Take Right Now To Improve Safety and Reduce Your Risk

“Accidents will occur in the best-regulated families.”

Statistics

►According to OSHA, Agriculture is among the most dangerous industries in terms of occupational hazards: ► In 2012, there were 475 fatalities in the agricultural sector.

► With a fatality rate of 21.2 per 100,000 full-time equivalent

workers, OSHA has noted that agriculture recorded the highest fatality rate for any industry sector.

► In 2011, the fatality rate for workers in the agricultural field was 7 times higher than the death rate for all workers in private industry.

Statistics (cont.)

► In addition to injuries, OSHA recently stated that agricultural industry workers are at high risk for work-related lung diseases, noise-related hearing loss, skin diseases, and certain cancers related to chemical and sun exposures.

► In 2011, OSHA reports there were 48,300 injuries recorded in the agricultural industry sector.

Notable OSHA Developments – Agricultural Sector

►Feb. 19, 2014 – Interim Final Rule for Whistleblower Claims under the Food Safety Modernization Act.

►Feb. 10, 2014 – OSHA News Release re: partnering with Agricultural

Retailers Association and The Fertilizer Institute notifying employers of safety issues regarding storage and handling of ammonium nitrate.

►September 16, 2013 – OSHA News

Release re: OSHA working with agricultural community to promote safety education training.

Notable OSHA Developments – Agricultural Sector

►Apr. 12, 2011 – OSHA adds grain handling hazards to the list of High Emphasis Hazards in the Severe Violator Enforcement Program.

►Aug. 4, 2010 & Feb. 1, 2011 – OSHA issues warning letters to the grain handling industry re: grain storage and handling hazards.

Case and Other Developments – Nationally

►Continued uptick in interest in criminal prosecutions, including recent prosecutions for fatalities

►Recent criminal cases involving lying to federal investigators or

otherwise engaging in unlawful conduct during the conduct of an investigation

►Enforcement activity including deferred prosecution agreement under

which an employer pays a civil and/or a criminal fine and possibly, payments to the family of the deceased worker

► In the last year, there was a murder indictment against an owner of a construction firm following a workplace fatality.

►Just this past year, in an MSHA case, a court issued a 42-month

prison sentence to a company official, followed by 3 years of supervised release for conspiring to violate health/safety laws and to conceal violations/warning of the arrival of inspectors to the worksite.

►At the beginning of April, there was a media item regarding the federal

criminal prosecution under 29 U.S.C. § 666(e) of a Company and its President, following a workplace fatality. It is still rare to see prosecutions under this provision.

►Some commenters note that prosecutions under 29 U.S.C. § 666(e) have occurred about 84 times since the OSH Act was enacted in 1970.

►However, local prosecutions under state laws can and do occur. ►Proposed penalty levels for

civil citations are increasing.

Comments of OSHA Officials on Ramp Up in Enforcement

Hilda Solis, Immediate Past Secretary of Labor

►“[W]e have to leverage our resources – through large fines that send a message to every workplace that cutting corners on worker safety won’t be tolerated.” 04/14/2010

►“[T]o those who have for too long abused workers, put them in harm’s

way, denied them pair pay, let me be clear, there is a new sheriff in town.” 08/26/2010

Dr. David Michaels, Assistant Secretary of Labor

"It's an unfortunate fact that sometimes monetary penalties are just not enough. Nothing focuses the mind like the prospect of time in prison. The plain truth is this: To outlaw criminal behavior, we need criminal penalties. Right now, under the OSH Act, the maximum criminal penalty for killing a worker as a result of a willful citation is only a misdemeanor, punishable by at most six months in jail. In contrast, if you harass a wild burro on federal land you can receive a year in prison." 06/14/2010

Dr. David Michaels

►"First and foremost, we will emphasize strong enforcement—as evidence in our record-breaking $84.7 million citation against BP Texas City, and the sharp increase in egregious cases." 03/10/2010

►"If the threat of a fine isn't enough, we have other ways to drive home the point that employers need to obey the law." 03/10/2010

►"Simply put, serious violations of the OSH Act that result in death or

serious bodily injury should be felonies like insider trading, tax crimes, customs violations and anti-trust violations." 04/27/2010

David Michaels

►"The possibility of incarceration is a powerful deterrent.“ 03/16/2010

Headlines for Criminal Prosecutions

Headline Industry State

Plant manager sentenced to 70 months in prison for safety and environmental violations. Manufacturing New Jersey

Site supervisor charged with 2 counts of involuntary manslaughter – faced up to 6 years in prison.

Construction California

Contractor charged with negligent homicide and reckless endangerment in fatal construction accident.

Construction New York

Headline Industry State Superintendent charged with involuntary manslaughter – faced up to 4 years in prison. Construction California

Two California farm supervisors charged with involuntary manslaughter in connection with heat related death of a pregnant teen farm worker.

Agriculture California

Four supervisors face criminal charges stemming from deadly 2006 mine fire. Mine West Virginia

President of company and plant manager charged with criminal endangering, while company’s health and safety manager charged with involuntary manslaughter, reckless homicide, and criminal endangering.

Oil/Refiner Ohio

Headline Industry State

Owner of New Hampshire farm sentenced to 10 months in jail for teen's death. Agriculture New Hampshire

California business owner and job foreman sentenced to 1 year in prison in fatal construction accident.

Construction California

Owner and manager charged with involuntary manslaughter in death of pregnant employee. Manufacturing California

Headline Industry State

Owner and supervisor of a roofing company sentenced to jail after a pair of incidents involving employee falls through skylights.

Construction California

St. Louis business owner facing charges for ignoring court order to comply with OSHA guidelines.

Service Missouri

Three construction supervisors charged with second-degree manslaughter, negligent homicide, and reckless endangerment in the deaths of 2 firefighters.

Construction New York

Headline Industry State Owner of a painting company sentenced to one year probation and $57,400 fine for willful violation of an OSHA regulation causing death of an employee; did not provide employee safety-related training.

Construction Pennsylvania

Senior Executive charged with conspiring to violate federal mine safety laws and impede federal mine inspectors.

Mining West Virginia

Two rig supervisors federally indicted for the deaths of 11 workers.

Petroleum Industry Louisiana

Headline Industry State

OSHA fines a manufacturer of engine cooling systems $1.3 million (including a $450,000 criminal fine) for 66 safety violations causing death of an employee.

Manfacturing South Dakota

Former senior executive of mining/energy corporation sentenced to 42 months in prison plus 3 years of supervised release for 2 federal crimes of conspiring to violate health & safety laws and concealing violations.

Mining West Virginia

Headline Industry State

Safety Manager sentenced to 78 months in prison for falsifying safety records at several nuclear power plants.

Construction Pennsylvania

Former president of a chemical company pleads guilty to violating safety laws resulting the death of a worker by chemical exposure – faces up to 5 years incarceration and up to a $250,000 fine.

Environmental Services Texas

Oil refinery pleads no contest and pays $2 million to settle criminal misdemeanor charges alleging violation of labor & health codes due to explosion and contaminant release.

Oil/Refiner California

Penalties

►Continued increases in the level of penalties

►Use of egregious citation policy (item by item by per violation citations)

►SVEP

►Overall increase in penalties for Willful, Repeated, Failure to Abate, and Serious violations ► Increase in Willful citations went from 401 in FY 2009 to 1,519 in FY

2010

Headlines for Increased Penalties

Headline Industry State

OSHA cites stamping company for 27 alleged safety and health violations and face $426,000 in penalties.

Manufacturing Ohio

OSHA cites packaging facility for 17 alleged safety and health violations and face more than $500,000 in fines.

Manufacturing Illinois

OSHA fines manufacturing company for more than $1.2 million for allegedly hiding work-related injuries and illnesses.

Manufacturing Texas

OSHA fines grain handling facility for more than $1.6 million following teenage worker's death. Agriculture Colorado

Headline Industry State

OSHA cites environmental service company for more than 50 alleged violations and face more than $2 million in penalties.

Services Florida

OSHA cites refinery for more than $3 million in penalties for allegedly exposing workers to a variety of hazards.

Refinery/ Manufacturing Ohio

OSHA issues fines exceeding $3 million against metal manufacturer company for allegedly exposing workers to amputation hazards.

Manufacturing Alabama

OSHA fines employer more than $1.2 million for allegedly exposing workers to asbestos hazards without protection.

Manufacturing Illinois

Headline Industry State

Two grain elevator employers fined nearly $1.4 million following the death of three workers. Agriculture Illinois

OSHA fines manufacturer $1.2 million, issues 54 alleged citations after deadly explosion kills 2 workers.

Manufacturing New Hampshire

OSHA fines company for more than $1.9 million for alleged egregious and other safety violations. Manufacturing Alabama

OSHA fines company penalty of $87.4 million for failure to correct potential hazards. Case settled for $50.6 million.

Energy Texas

Headline Industry State

IOSHA fines Indiana manufacturing company $466,400 for allegedly exposing workers to dangerous level of hazardous dust.

Manufacturing Indiana

OSHA fines animal food producer $472,900 for alleged safety and health violations. Agriculture Ohio

OSHA fines 3 construction companies and fourteen site contractors $16.6 million in connection with fatal natural gas explosion.

Construction Connecticut

Headline Industry State

OSHA fines Colorado agricultural business $300,300 for 43 alleged safety and health violations.

Agriculture Colorado

OSHA fines Colorado distribution center $217,000 for allegedly exposing workers to electrical hazards. Distribution Colorado

OSHA fines Minnesota agricultural and trucking businesses a combined $86,500 after a driver was fatally injured when he allegedly fell from the top of his truck at the agricultural facility.

Agriculture and Trucking Minnesota

Proactive Steps You Can Implement Right Now

►These ideas are intended, first and foremost, to improve worksite safety.

►However, even if they are not successful in preventing an accident, they should greatly improve the odds in favor of safety.

►Further, where accidents occur despite these proactive steps, these methods/techniques should be helpful if an OSHA inspection is conducted.

►They may or may not reduce the potential for being cited, but they may have an effect on the penalties and/or severity of the citation(s).

Train in Excess of the Standard

►Many standards expressly require training.

►Some standards do not mention it.

►Some standards require periodic training (e.g., annually).

►Some standards specify content of training.

►Recommendation: train in excess of minimum standard requirements, at least in some areas of focus.

Workplace Environmental, Safety & Health Audits

►A strong tool for safety/health compliance and enforcement ►Even partial audits may reveal areas out of compliance/in need of

abatement. ►Moreover, employers that go beyond minimum regulatory compliance

are less likely to be held in “willful” violation of OSHA standards. ►An independent view of facility/jobsite safety is often very helpful. ►Different personnel/different perspectives and additional expertise are

brought into the safety/health evaluation process. ►But, before you commence an audit, consider whether you want to try

to secure attorney/client privilege and/or work product protection over the audit and audit report!

Environmental, Safety & Health Audits (cont.)

►Three main varieties about which to be concerned: 1. Violations that are true & uncorrected for long periods after audit

► Take prompt corrective action, consistent with the audit.

2. Alleged violations that auditor and client subsequently agree aren’t violations. ► Get written confirmation of agreement into the file.

3. Violations that are true and are corrected ► Get auditor to confirm abatement in writing.

The Owner’s Manual / Operator’s Manual

►Read them thoroughly. ►They will be used against the employer. ►Therefore, it is best to pay heed to them. ► Include the recommendations and requirements of the manuals into

the employer’s compliance and training program.

Agency On-Site Resource

►OSHA maintains an on-site consultation program that offers free safety and health improvement assessment/advice to small and medium-sized employers. This program is separate from the enforcement side of OSHA.

►Consultants assist businesses by visiting worksite, identifying areas of improvement, and providing advice on compliance/hazard reduction.

►Employers using this program must agree to correct the hazards that are identified.

►The most recent data on OSHA’s website show that agricultural sector visits accounted for only 2% of total closed consultation visits.

►Demonstrates proactivity and employer wish to secure compliance, but discuss with legal counsel before engaging the agency.

New Equipment

►New equipment often presents new processes and new operational considerations.

►There can be an increase in occupational injuries associated with such new equipment, due to inexperience/lack of knowledge about it.

►Therefore, there should be a number of closely supervised and documented test runs of the equipment with all affected shifts/crews before the equipment is placed into operational mode.

►Even after operations are started, more frequent supervision/checks should be maintained, at least for the first few weeks/months to ensure proper procedures and safety requirements are being followed.

Older Equipment

►Older equipment can be the cause of safety incidents. ►Equipment, no matter how well constructed, will age and potentially

create higher risk levels for failure. ►This means that periodic audits of equipment must be made. ►Some employers simply wait until failure occurs to respond. ►Not only does this create operational delays, it can present very real

safety and health risks. ►Do not wait until failure occurs. This is particularly important for

equipment such as equipment which is: energized, pressurized, subject to gravity, contains hazardous or flammable materials, involved in safety/health preservation (fire alarms, dust collectors/bag houses, etc.), involves heat containment, or in proximity to individuals.

Audit the Supervisors – The First Line of Defense

►How much time are they spending in the field/on the shop floor?

►What about their enforcement activities?

►Are they up to speed on the applicable regulations?

►What is their training record? Is it current? Is retraining needed?

►Can they represent well in terms of knowledge when questioned about safety and operations?

Is the Safety Program Sufficient?

► Is there a written rule/policy regulating various safety activities? ►Was proper, relevant and timely training provided to affected

employees? ► Is there a decent history of enforcing safety rules/policies through an

effective disciplinary policy and practice? ►Are the supervisors regularly traveling through the worksite for the

purpose of inspecting for compliance with safety rules/standards (and is that schedule of worksite reviews being documented)?

Multi-Jurisdictional History

►Better information checking/sharing within OSHA across jurisdictions ► OSHA use of extra-jurisdictional employer history to support heightened

penalties and alleged violations.

►Recent retail example just this past year in a retail case. Expect more examples of historical citations & heightened penalties.

► Improve information sharing and proactive action recommendations across employer sites, even in other jurisdictions.

►Communicate with local management re: compliance and with mandatory response back to responsible official by a date certain.

Establishing Periodic Schedules

►Too often, safety activity is not organized according to timeframes. ►The best safety programs operate on time schedules. But, stick to

them!! ►Routine and regular equipment audits. ►Training and retraining to occur per a set

schedule (in addition to new hire and new operations/new equipment training).

►Emergency operations, safety inspections, and mock drills on set timeframes.

Business Upcycles and Rushed Projects

►Mandatory safety training/re-training immediately prior to such periods. ►More supervision on the floor during such timeframes. ►Equipment audit/maintenance before such periods. ►Especially, recheck safety guards/interlocks/light curtains, etc. ►Protective equipment checks prior to such rushed work situations. ►Document all such activities for proof. ►Consider preparation of appropriate pre-high volume memorandum

alerting all supervisors that safety is a priority and to take specific training/re-training and close supervision steps.

Recognize and Properly Manage Diversity in the Workforce

► Increased diversity of the workforce ►According to OSHA, approximately one half of farmworkers are

Hispanic.

►Proper communication of safety rules, training, and supervision (in more than one language)

►Publish safety and other workplace materials in more than one language.

Empowering Workers to Make Pro-Safety Decisions

►Not all safety decisions can be reduced to protocols, policies and practices.

►Work operations and jobsite developments sometimes call for

independent and immediate safety decisions. ►Well trained workers and supervisors should have the ability to make

appropriate judgments and decisions when such circumstances arise. ►Accordingly, employers may wish to provide a level of pro-safety

discretion to qualified workers. Document that policy.

Not Losing Sight of the Goal

►To improve the safety and health conditions/quality of life of all affected folks

►To do our best to provide information and recommendations toward

that end ►To work together in a way that maximizes the potential for success in

that effort